There are lots of ways for an appellate court to avoid ruling on the merits of an argument on appeal. One way is improper briefing by the appellate.
The recent case of Seely v. Geico Advantage Ins. Co., No. M2021-01263-COA-R3-CV (Tenn. Ct. App. Mar. 6, 2023) reminds us of the law. The Seely court said as follows:
We have determined that three of the issues Plaintiffs raised are waived for failure to comply with Tennessee Rule of Appellate Procedure 27(a). As GEICO points out in its brief, Plaintiffs’ appellate brief contains either no or insufficient citations or arguments explaining how the trial court erred in ruling on three issues: (1) the Tennessee Consumer Protection Act; (2) Plaintiffs’ Motion to Alter or Amend the July 23, 2021 Order; and (3) GEICO’s motion to quash a deposition.
Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of an appellate brief as required by Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure constitutes a waiver of the issue. Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted). Moreover, an issue is waived when it is simply raised without any argument regarding its merits. Id. at 56. O’Shields v. City of Memphis, 545 S.W.3d 436, 443 (Tenn. Ct. App. 2017). Because of the deficiencies in Plaintiffs’ brief concerning the three issues identified above, we decline to address these issues. See Bean, 40 S.W.3d at 56; see also England v. Burns Stone Company, Inc., 874 S.W.2d 32, 35 (Tenn. Ct. App. 1993).
Id. at p. 7.
Boom.
Tenn. R. App. P. 27(a) provides as follows:
(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting forth: (A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);
(8) A short conclusion, stating the precise relief sought.
Review your appellate brief with this rule in mind. In my view, our appellate courts are more insistent than ever that the rules of appellate procedure be followed and will not hesitate to deem an argument waived if they are not.